Insights

by James D. Crosby

Attorney Elizabeth Balfour Guests on Trial Call 10 Podcast.

I had a great conversation with Elizabeth Balfour of Sheppard Mullin Richter & Hampton LLP for the most recent episode of my Trial Call 10 podcast.

Listen to it on Spotify here: https://open.spotify.com/episode/1unkSlSGDsmBxMFBAstHj5…

Thanks for sharing your ideas and insights, Elizabeth!

by James D. Crosby

Trial Call 10 Podcast Highlighted in March/April Issue of San Diego Lawyer magazine.

by James D. Crosby

20 Small Things I Like About Work as a Litigator/Trial Lawyer.

1. Walking to court.
2. Sitting through a motion calendar, waiting my turn, listening to the arguments.
3. Completing the final version of the introductory paragraph of a motion or brief, when it says exactly what you want it to say, in exactly the way you want it to be said.
4. Having a drink with opposing counsel after the trial is over.
5. That moment in argument when you realize the Judge suddenly gets the point you are making.
6. That moment on cross-examination when the witness recognizes there is no answer he can give that doesn’t damage his case.
7. When you require the slippery witness in a deposition, after repeated efforts, to actually answer the question you asked.
8. When opposing counsel is done cross-examining your client at trial, and the Judge turns to you and says “Redirect?”, and you can say “No, Your Honor.”
9. When a deposition actually occurs on the date and at the time it was actually noticed for.
10. When you make payroll, pay your monthly expenses, take your monthly draw, and there is still a nice chunk left over.
11. When you receive a call from a prospective client referred to you by somebody you don’t even know.
12. Swapping trial tales over drinks with a long-time colleague.
13. The reaction of opposing counsel when you suggest a face-to-face meet and confer on discovery issues as opposed to email/letter exchanges.
14. Your associate’s reaction when she nails oral argument and wins a difficult motion.
15. Big lawyer social events.
16. Serving substantive, detailed, discovery responses, without objections, and not being worried about it.
17. When, after a case concludes, one way or the other, your client says, “Thank you!”
18. When your client’s deposition is concluded, and you can say without reservation or doubt, “That went well!”
19. When the jury walks back into the courtroom after deliberations – the drama!
20. Getting to do, getting paid to do, this meaningful, interesting, and challenging work!

by James D. Crosby

Behind the Scenes of a Solo/Small Firm Practice – Q1 2024

1/2024 – 7 cases set for trial in 2024. A nice batch of other cases either in the early stages or just finishing up. Looks like a busy 2024! Yay!

2/2024 – 2 of the 7 cases set for a 2024 trial settle out, one quite unexpectedly. New case generation a bit slow. Hmm?

2/15/2024 – Another of the cases set for a 2024 trial settles out, again abruptly, and on the brink of about a half dozen lengthy depositions. Another gets bumped to 2025. Yikes!

3/1/2024 – Another 2024 trial case gets bumped to 2025. 2024 trial calendar down to two late-year cases. Crap! Overdue business development activity commences!

That evening, G&T in hand, I fret to my wife and confidant Jill: “My run is over, my practice is drying up! And I just hired a new associate! I need to hustle for some new cases. What if they don’t come in? I’m too young to retire!” She smiles, chuckles, shakes her head, and says nicely: “Do you know how many times you have said that? Get a grip.”

3/8/2024 – Networking pays off – I pick up a substantial new case set for trial in Summer 2024. Good!

3/12/2024 – Another two new cases come in, also set for a 2024 trials, with a bunch of pending law and motion to address and a chunk of depositions to take. And some other potential referrals are floating around out there. Yes!

That evening, me to Jill: “I might have to work this weekend. I have a lot to do.” She laughs.

Though I have been at it for a long time now, Small/Solo practice is never boring. There’s always something new, despite the familiar struggle of balancing between “way too busy and frazzled” and “not busy enough and worried.” The road is sometimes smooth; sometimes bumpy; often lucrative; sometimes lean; sometimes it’s smooth sailing; other times, a rowdy roller coaster ride. But it’s always challenging, and always interesting. I wouldn’t have it any other way.

by James D. Crosby

Major Victory in First Circuit Court of Appeals – Discretionary Function Exception Not Applied in Constitutional Tort/FTCA Case!

Ezekiel (“Zeke”) Cortez and I, along with our appellate co-counsel, Annaleigh Curtis and Tom Saunders of Wilmer, Cutler, Pickering, Hale, and Dorr LLP, scored a significant appellate victory for our client with a published decision in the First Circuit Court of Appeals. Torres-Estrada v. Cases (Case No. 21-1521) 2023 WL 8446470. Zeke and I represent Elvin Torres-Estrada, a federal inmate on drug charges, who alleges Bivens and Federal Tort Claims Act (FTCA) claims against the FBI and individual FBI agents for alleged long-continuing violations of his constitutional and statutory rights. Torres-Estrada alleges that the FBI in Puerto Rico, through various tortious acts and constitutional violations, sought to elicit a false confession and frame him for a murder he did not commit. We commenced the action in the Southern District of California. Upon the government’s motion, the case was transferred to the U.S. District Court in Puerto Rico. The government moved to dismiss arguing that Torres-Estrada’s FTCA claims were barred by the discretionary function exception to the FTCA and that all his claims were otherwise time-barred. The District Court dismissed Torres-Estrada’s claims without leave to amend. We appealed.

The Court of Appeals reversed, holding the District Court failed to consider whether the complaint and Torres-Estrada’s FTCA claims adequately alleged unconstitutional conduct to which the discretionary function exception to the FTCA does not apply. The Court flatly rejected the government’s efforts to impose a new standard on plaintiffs to allege facts to “clearly establish” a constitutional violation to avoid application of the exception.  As to the “time-barred” claims argument, the Court of Appeals applied the “continuing violation” doctrine to reverse the District Court’s dismissal of at least one of Torres-Estrada’s currently alleged torts claims. Significantly, and in light of relevant new evidence discovered during the proceedings, the Court of Appeals granted us leave to amend the complaint.

This is a major victory for our client and for other plaintiffs bringing claims against the government for constitutional violations. It was a team effort, but I want to commend Annaleigh and Tom for their appellate work on the case and, particularly, Annaleigh for her fine oral argument before the Court of Appeals. Zeke and I are now back in the trial court where we will amend consistent with the appellate ruling, proceed to discovery and depositions, and prepare this matter for a trial in Puerto Rico on behalf of our client. Back in the trial court, the battle continues!

This appeal is also a bit of  a “blast from the past” for me. In my first appellate appearance before the Ninth Circuit, as a young lawyer in the 80’s, I won an appeal in a published decision – Baker v. United States (1987) 817 F.2d 560. Baker involved application of the discretionary function exception to the FTCA as well, there in the context of claims arising from the government’s regulation of polio vaccines. Baker was also one of the cases that set up a conflict in the circuits about application of the exception, which conflict was resolved by the U.S. Supreme Court in Berkovitz v. United States (1988) 486 U.S. 531. Bringing it all back around for me, Berkovitz is cited in the Torres-Estrada decision. Pretty cool.

by James D. Crosby

40

Today, I am 40 years a lawyer. Along with USD law school friends and fellow brand-new lawyers, I was sworn in as a lawyer on this day in 1983. Four decades! It sure doesn’t seem that long, that is until I start thinking about specific cases, events, wins, and losses, many of which happened decades ago! Frankly, it sometimes seems like I only recently figured this whole thing out and came into my own as an effective litigator and trial lawyer. 40 years, amazing!

To which my fellow solo/small firm trial attorneys will surely relate, I have run the gamut of cases, clients, and events in my 40 years:

–              from big, complex, “bet the company” cases to silly little cases that good clients wouldn’t let go;

–              from big wins to unexpected losses;

–              from a $100M+ action against Mexico under NAFTA to simple-as-it-gets actions for money on promissory notes;

–              from months long jury trials to one-hour bench trials;

–              from dispositive MSJs to inconsequential motions to compel discovery that will never be of any use at trial;

–              from ESI-heavy business cases requiring use of sophisticated e-Discovery software to “back-in-the-day” cases involving a banker’s box of documents;

–              from large sophisticated institutional clients to Mom-and-Pop shops and individual clients;

–              from wonderful thoughtful clients to slippery shady ones;

–              from clients who are now life-long friends to a few who are most decidedly not;

–              from $150/hr to $525/hr;

–              from significant published appellate victories to unpublished appellate losses;

–              from cases where I made good chunk of money to cases where I withdrew and had to eat a good chunk of money;

–              from lucrative, buy something you would never otherwise buy, sock a chunk away, years to pay the bills, take enough home, just keep the train rolling down the track, years;

–              from cases that were all about the money to pro bono cases that were all about the cause or the indigent client in harm’s way;

–              from cases I stupidly passed up to cases I stupidly accepted;

–              from professional relationships with fine opposing counsels (most of time) to snarky battles with truly awful unethical attorneys (not so often);

–              from solo practice to small firms to big firms, and then back around again;

–              from opposing counsels who are now quite good friends to opposing counsels whom I fought with daily for months and months and never saw or heard from again; and, overall,

–              from the very good (often) to the good (mostly) to the bad (seldom) and all points in between!

And through it all, most every day, most all the time, I have relished and truly enjoyed being a trial attorney, and still do to this day. It’s a great job – not easy, not always fun, often quite difficult, often quite stressful – but its truly a great job.

Over my 40 years, much has changed, but there is much that has not changed about trial practice. At its core, trial practice is much the same as when I started in 1983. We analyze the facts and applicable law of our cases, develop themes, fight for documents and discovery, take depositions, file and argue motions, go to settlement conferences/mediations, work hard to settle cases on good terms, and when that effort fails, we prep cases for trial, stand up before judges and juries, try our cases, and take the victories and loses as they come.

The basics are the same, but much has also changed. Most prominently, how technology has impacted the way we practice law and conduct business. Our complete reliance on computers and software for all aspects of the work; the proliferation of ESI and software necessary to handle it; the ability and expectation that we are always available/always on for our clients and counsel; and, a substantially accelerated pace of practice. In my view, all of this has been for the better. We are in better and more frequent communication with our clients. Software now handles the nuts and bolts of running an office quickly and effectively. Computers and software have dramatically leveled the playing field for solos and small firms to compete with big firms for work. The number of lawyers in California has substantially increased but so has the available work. And, at least for me, the fast pace of litigation and trial practice now is perfect – its suits me, I like it.

“Back in the day”, “back in the day”, “back in the day” – I hear many lawyers regularly talk about “back in the day” as if the practice of law in general, and trial practice in specific, were markedly better “back in the day”. I have fond memories and some great stories from “back in the day”, but I strongly disagree that back then was better than now. It wasn’t.

The business is much more diverse now – not yet far enough along, but demonstrably better than 40 years ago. Firm compositions and environments are very different than “back in the day”. And that changes the practice of law for the better, towards greater diversity and better opportunities for all, every day. Clients have better choices for, and better, more available, information about, their lawyers. They can have better, and more responsive, communications with their lawyers.

Cases move quicker and are resolved much more expeditiously than “back in the day” when cases often ran up against the five-year dismissal statute. Remote work has opened up opportunities and improved the work/life balance of a whole generation of young lawyers. Technology now allows solos and small firm attorneys to effectively compete for, and handle, all but a small percentage of the available work, and to connect with other attorneys to jointly work bigger cases. Big firms are down in the trenches with solos/small firms competing for work like never before in my experience. Technology has substantially lowered overhead and increased profit margins for solo and small firms, and there seems to be no lack of work for litigators and trial attorneys. And, at least for me, trying cases is just as much fun, and just as interesting, now as it was when I first stepped into a courtroom way “back in the day”!

All in all, as much as I like to reminisce over cocktails about “back in the day”, I think this is an incredible time to be a trial lawyer and it will only continue to get better and better.

So, 40, in the books!

How about 50?

Yes, absolutely, let’s go!

by James D. Crosby

Over the last few months, I have had the honor of interviewing some of San Diego’s top trial lawyers on my podcast, the Trial Call 10. Even with decades of trial experience, I have learned something new from each and every one of my exceptional guests. And we have more coming! If you are looking for tips to improve your trial practice, or just enjoy hearing passionate lawyers talk about some of their cases, tune into the podcast on Spotify here: https://open.spotify.com/show/1w6g0xGaJrZSuonzgMtwEl 

by James D. Crosby

My Covid Backlog – In The Rear View Mirror!

I tried a couple of cases to the bench the first half of this year. But, barring my entry into a new matter shortly before a trial, which occasionally happens, my trial calendar is clear for the remainder of 2023. Tried a few, settled a few, had two resolve by motion, and withdrew from a few with non-paying clients.

My 2024 trial calendar looks much different though – five matters set for jury trials in the first half of 2024! It will be a busy Fall/Winter 2023 into 2024. That is good news!

What is interesting about this breakdown is the Covid factor. The cases I have tried, settled, or withdrew from so far this year were all cases that commenced either before or during Covid. They were cases that had puttered along slowly toward trials through Covid shutdowns and surges, all 2-3, in one case 4, years old when concluded. These were cases where clients had to wait, through no fault of their own, unreasonable periods of time to get resolutions and where the fees to my practice from such cases were spread out over longer than usual periods of time. Bad for the clients, bad for my practice. Contrary to my real fear in March 2020 that Covid would decimate my trial practice, I was reasonably busy during the Covid shut-downs and surges. Happy for that! But the cases did progress differently and slower than in the “Time before Covid”. It was a weird time, to say the least.

In contrast, the cases I have set for trial next year are 2022 post-Covid cases set for trial roughly within 18 months of filing. Granted, it is unclear whether these cases will actually proceed to trial on their trial dates given the remaining Covid-caused court backlog. The courts are still pretty backed up. But they are getting cases set and out for trial and whittling down the trial backlogs. And trial dates are now real dates again as opposed to the place-holders they were during Covid. There is real progress towards a more normal progression of cases in my office, and in the system as a whole.

My Covid case backlog is now in the rear-view mirror. The courts are steadily moving in that direction as well. That is good news – for my clients and for my practice!

by James D. Crosby

Trial Call 10 – New Episode with Attorney Susan Basinger!

It was a pleasure, and lots of fun, to welcome my friend Susan Basinger, Partner at Higgs Fletcher & Mack LLP, to the Trial Call 10 podcast this week! Listen to the episode on Spotify here: https://open.spotify.com/episode/4iDC4m3t65J7NsNEvCDhDH

by James D. Crosby

2023 San Diego Super Lawyer and Top 50!

Happy to be named a 2023 San Diego Super Lawyer for Business Litigation and to the list of Top 50 San Diego Super Lawyers.